On January 30, 2020, the United States Court of Appeals for the Ninth Circuit reversed a district court’s dismissal of a disability-discrimination claim brought under Washington state law and remanded the matter for further disposition.

In 2007, BNSF extended Casey Taylor (“Taylor”) a job offer for a safety-sensitive position contingent upon the outcome of a post-offer medical review. Taylor submitted to a medical examination, which showed that Taylor’s actual height (5’6”) and weight (256 pounds) measurements resulted in a Body Mass Index (“BMI”) calculation of 41.3. BNSF’s medical examiner referred Taylor to the company’s chief medical officer because his BMI was 41.3, and BNSF treats BMIs over 40 as a benchmark for further screening in its pre-hiring process.

Upon learning Taylor had a BMI over 40 and issues with his back and knees, BNSF requested additional medical information from Taylor to determine whether he could safely perform the job. When Taylor did not provide this additional information, BNSF declined Taylor’s application because he was not “medically qualified.”

Taylor was advised that BNSF would reconsider his medical qualification if he underwent additional medical testing at his own expense. Taylor told BNSF he could not afford the additional medical testing. If he chose not to obtain the additional tests, Taylor was informed his employment would be reconsidered if he lost at least 10 percent of his weight and maintained that weight for at least six months.

In 2010, Taylor and his wife brought this claim of disability discrimination under the Washington Law Against Discrimination (WLAD) against BNSF based on a perceived disability and his veteran status. BNSF removed the case to federal court in 2011.

To establish a disability-discrimination claim under the WLAD, there must be a showing of the following three elements: 1) that Mr. Taylor was perceived to have a disability; 2) that he was able to perform the essential functions of the job; and 3) that the perception of his disability was a substantial factor in BNSF’s decision to deny him employment.

BNSF moved for summary judgment and argued that the Court should follow the rulings of some federal courts interpreting the ADA and hold that obesity can be a disability only if it is caused by a separate, underlying physiological disorder. It further argued that federal authority should be applied because Washington’s statutory definition of “impairment” is nearly identical to the federal (ADA) regulation.

In March 2016, United States District Judge James L. Robart granted BNSF’s motion for summary judgment and the couple’s disability-discrimination case was dismissed with prejudice—leading to their appeal to the Ninth Circuit.

In September 2018, the Ninth Circuit certificated a question to Washington’s highest court asking whether obesity can be considered an impairment under state anti-discrimination law.

After accepting certification, the Supreme Court of Washington made clear that the “WLAD is broader than the ADA and offers its own independent protections to Washingtonians,” and it held as follows:

“[O]besity is always an impairment under the plain language of RCW 49.60.040(7)(c)(i) because the medical evidence shows that it is a ‘physiological disorder, or condition’ that affects many of the listed body systems. Obesity does not have to be caused by a separate physiological disorder or condition because obesity itself is a physiological disorder or condition under the statute. Our legislature has made it clear that the WLAD is broader than its federal counterpart, the Americans with Disabilities Act of 1990 (ADA), and we decline to use federal interpretations of the ADA to constrain the protections offered by the WLAD.”

Thereafter, the Ninth Circuit held, in sum, that a reasonable jury could find 1) that Mr. Taylor was perceived to have a disability (obesity); 2) that he was able to perform the essential functions of the job; and 3) that the perception of his disability was a substantial factor in BNSF’s decision to deny him employment—thus, finding the district court erred in granting summary judgment to BNSF.

In its memorandum, the Ninth Circuit relied on its decision in EEOC v. BNSF Ry. Co., 902 F.3d 916, 924–27 (9th Cir. 2018) (as amended), cert. denied, 2019 WL 5875127 (U.S. Nov. 12, 2019) (No. 18-1139), that an employer engages in prohibited discrimination under the federal American with Disabilities Act (ADA) when it withdraws a conditional offer of employment based on a prospective employee’s failure to pay for medical testing that the employer has required solely because of the prospective employee’s perceived disability or impairment. It reasoned that EEOC v. BNSF Ry. Co. applies to the WLAD since it is generally as broad as the ADA, so the couple’s claim of discrimination asserts a “valid legal theory.”

It further concluded that BNSF failed in its appellate-brief argument that summary judgment should be affirmed under the McDonnell Douglas burden-shifting framework since it is undisputed that BNSF required further medical testing because of Taylor’s weight. The Ninth Circuit again relied on EEOC v. BNSF and its holding that “where it is clear that an action was taken because of an impairment or perception of an impairment, no further inquiry or burden-shifting protocol is necessary to establish causation.”

As to the second claim of disability discrimination, the Ninth Circuit upheld Judge Robart’s decision to grant summary judgment to BNSF on the couple’s allegation that Taylor was discriminated on the basis of back and knee problems, saying the district court correctly concluded that BNSF “did not perceive Mr. Taylor as having such impairments.”

It is unclear if the Ninth Circuit’s unpublished memorandum will have far-reaching effects, but it should serve as a warning to railroads based in Washington, and in other states with statutes generally as broad as the ADA, to be cautious of their policies and procedures which may invoke potential “regarded as” or perception based disability discrimination claims. For those railroads employing Washingtonians, it is advisable to review company policies related to initial-medical-examination results indicating a BMI over 40 and to keep in mind “obesity always qualifies as an impairment” under the WLAD.